Note to subscribers: Please skip this post. I apologize for being rather inept as a blogger. I have edited and enhanced the previous entry on the Supreme Court and “reasonable doubt” and added a second entry expanding on the 1970 decision (rather than unpublishing the first entry and then publishing a second entry). I don’t want you to have to read two, new posts on the same concept. I imagine there’s a slick, professional way to do this, but I haven’t learned it yet.

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The re Winship (1970) decision explains why the reasonable-doubt standard is so important. It cites Justice Frankfurter:

• “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence--that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’."

The Winship (1970) decision concludes with Coffin v. United States:

• "a person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case."

In other words, the Supreme Court sought in 1970 to prevent juries from convicting defendants based on factual error, such as the introduction of evidence that is tainted or the subjective opinion of investigators and experts.

The decision also makes it clear that the standard of proof applies to all the elements of the crime of the which the defendant is accused.

• “Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is “charged. “

Since I’m not a lawyer, I’m not sure whether this means the elements of motive, means, and opportunity, or the specific acts of the given crime (although I tend to think the latter). And this is a critical difference. I can recall several highly sensational trials in which people were convicted even though several facts were never proved—beyond any kind of doubt (Melanie McGuire, for instance, who was accused of chopping up her husband’s body and draining the blood in a bathroom from which investigators found not a trace of blood and Scott Peterson who was accused of killing his pregnant wife by smothering her with a pillow when no trace of violence was present at the scene and despite the failure of the coroner to find the cause of death).

These days, though, because of the poor wording of most pattern jury instructions, I believe that juries assume the standard of proof applies only to the strength of their feelings about the case.

However, the Supreme Court’s intent and the history and meaning of the phrase are two different matters. In another blog, I’ll pursue the history and meaning further. I’ll trace the phrase to the War of 1812 and then the Boston Massacre and even further back, and across the Pond, to the Old Bailey.

(Caveat: I’m not a lawyer, I’m a rhetorician, linguist, and textual critic. I’m interested in the phrase as a matter of the history of ideas and philology, not the legal interpretation.)